Kattell (Migration)

The Administrative Appeals Tribunal considered a migration matter involving an applicant whose Skilled Regional Sponsored (Provisional) visa (Subclass 485) was subject to cancellation. The applicant had been convicted of an offense, leading to the potential cancellation of his visa under section 116(1)(g) of the Migration Act 1958 (Cth). The applicant sought to have the cancellation decision set aside, raising issues of family and financial hardship, his low risk of reoffending, and his responsibilities in Nepal.

The primary legal issue before the Tribunal was whether, having found that a ground for cancellation existed, it should exercise its discretion not to cancel the applicant's visa. This required the Tribunal to consider various factors, including the purpose of the visa holder's stay, their compliance with visa conditions, and the degree of hardship that cancellation might cause. The Tribunal also had regard to the Department's Procedures Advice Manual concerning general visa cancellation powers.

In its reasoning, the Tribunal acknowledged that the ground for cancellation was established but noted that it did not mandate cancellation. The Tribunal considered the applicant's stated purpose for coming to Australia, which was to study, and his subsequent completion of IT qualifications. While the applicant had not worked in his field of IT, he had completed cookery qualifications and was working in the hospitality sector, intending to seek further visa sponsorship on that basis. Crucially, there was no evidence of non-compliance with visa conditions. The Tribunal also weighed the significant family and financial hardship that cancellation would cause, including the applicant and his wife being primary carers for their parents, one of whom had recently undergone surgery.

Ultimately, the Tribunal determined that the factors weighing against cancellation, particularly the hardship and the applicant's efforts to establish himself in a new field, were of greater significance. Consequently, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel it. The Tribunal noted it had no jurisdiction concerning a second applicant.